Palestine

The territory of the state of Palestine continues to be occupied by Israel.

The right to self-determination of the Palestinian people in Palestine had been recognized by the United Nations in 1974, UNGA Res 3236 (XXIX), 22 November 1974. but the question of statehood of Palestine remained unsettled for a long time.

The question whether an entity possesses statehood is determined by international law. Under the 1933 Montevideo Convention, states are characterized by having a permanent population, a defined territory, a government and the capacity to enter into relations with other states. It is debated whether or not the recognition of statehood by other states is an additional criterion. For a thorough analysis of all the criteria of statehood, see M. Craven, ‘Statehood, Self-Determination and Recognition’, in M.D. Evans (ed), International Law, 3r edn, Oxford University Press, 2010, p 203. The ICRC seems to follow the so-called declaratory approach: under the declaratory approach recognition of other states is not necessary for an entity to be a state under international law; see T. Ferraro and L. Cameron, 'Article 2: Application of the Convention', ICRC, Commentary on the First Geneva Convention, 2016, §231. However, recognition may, in any case, be evidentiary in cases of doubt about the statehood of an entity. J. Kleffner, ‘Scope of Application of International Humanitarian Law’, in D. Fleck (ed), The Handbook of International Humanitarian Law, 2013, p 48. In addition, membership in international organizations as a state and the capacity to accede to treaties as a state party provide further evidence.

On 29 November 2012, the United Nations General Assembly adopted a resolution according ‘Palestine non-member observer State status’, noting, amongst others, that Palestine was recognized by 132 member states of the United Nations and a full member in UNESCO, the League of Arab States, and the Organization of Islamic Cooperation. UNGA Res 69/19, 29 November 2012. Full membership requires a recommendation by the Security Council. In April 2014, Palestine submitted letters of accession to international conventions and treaties United Nations Secretary-General, ‘Note to Correspondents in Response to Questions Asked at Noon Concerning Palestinian Letters for Accession to International Conventions and Treaties’, 2 April 2014., including the four 1949 Geneva Conventions, 1977 Additional Protocol I and the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs on Land, which were all accepted by their respective depositaries. V. Kattan, ‘Palestine and the International Criminal Court’, European Council on Foreign Relations, 1 September 2014. Palestine is now listed as a state partie, see ICRC, States Parties and Commentaries: Palestine. In contrast, in 1983, the Swiss federal government, in its capacity as a depositary of the Geneva Conventions, issued a note of information that ‘due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine and as long as the issue has not been settled in an appropriate framework, the Swiss Government, …, is not in a position to decide whether this communication can be considered as an instrument of accession’. The note is reproduced in 5 Palestine Yearbook of International Law (1989), p 5. In January 2015, Palestine acceded to 1977 Additional Protocol II and the Rome Statute of the International Criminal Court, which were all accepted. The Rome Statute entered into force for Palestine in April 2015. International Criminal Court, ‘ICC Welcomes Palestine as a New State Party’, Press Release, 1 April 201. Palestine is also listed as a state party by the United Nations. In contrast, in 2013, after the Palestinian Authority lodged a declaration accepting the exercise of jurisdiction by the International Criminal Court in 2009, the Office of the Prosecutor refused to move forward with an investigation in April 2012 because ‘it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court’. Office of the Prosecutor, Situation in Palestine, 3 April 2012. In light of Palestine’s status as a non-member observer state of the United Nations and its participation in international treaties as a state, there is little doubt as to Palestine’s statehood under international law. For a detailed list of events relevant to determine Palestinian statehood, in particular in relation to the exercise of jurisdiction by the International Criminal Court, see B. Van Schaack, ‘Timeline: Palestine and the International Criminal Court’, Just Security Blog, 7 January 2014; B. Van Schaack and M. Woolslayer, ‘An Update of the Israel Palestine-International Criminal Court Timeline’, Just Security Blog, 28 August 2017.